[Federal Register: February 4, 2004 (Volume 69, Number 23)]
[Rules and Regulations]
[Page 5277-5280]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04fe04-13]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[CGD05-03-113]
RIN 1625-AA00
Security Zone; Salem and Hope Generating Stations, Delaware
River, Salem, NJ
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard is establishing a security zone in the Captain
of the Port, Philadelphia, PA zone, immediately adjacent to the nuclear
power facility at Salem and Hope Creek Generating Stations. This zone
is needed to ensure public safety and security from subversive or
terrorist acts. This rule is intended to prevent terrorist attacks
against nuclear power facilities by denying entry into this zone unless
authorized by the Captain of the Port, or their designated
representative.
DATES: This rule is effective March 5, 2004.
ADDRESSES: Comments and materials received from the public, as well as
documents mentioned in this preamble as being available in the docket,
are part of docket CGD05-03-113, which is available for inspection or
copying at Coast Guard Marine Safety Office Philadelphia, One
Washington Avenue, Philadelphia, Pennsylvania 19147
[[Page 5278]]
between 8 a.m. and 4 p.m., Monday through Friday, except Federal
holidays.
FOR FURTHER INFORMATION CONTACT: Lieutenant Junior Grade Kevin Sligh or
Ensign Doreen Moore, Coast Guard Marine Safety Office Philadelphia, at
(215) 271-4889.
SUPPLEMENTARY INFORMATION:
Regulatory History
On September 15, 2003 we published a notice of proposed rulemaking
(NPRM) entitled ``Security Zone; Salem and Hope Generating Stations,
Delaware River, Salem, NJ'' (68 FR 53935). We received two letters
commenting on this proposed rule. Both letters requested a public
hearing. After considering the comments, the COTP Philadelphia decided
to not hold a public hearing.
In addition the following temporary final rule was published in the
Federal Register:
``Security Zone; Salem and Hope Generating Stations, Delaware
River, Salem, NJ'' (68 FR 32996, June 3, 2003). This temporary final
rule established a security zone around the Salem and Hope Generating
Stations, Delaware River, Salem, NJ. The original effective period of
the temporary final rule was to expire at 5 p.m. (EST) on January 24,
2004. The effective period has been extended through March 4, 2004.
Background and Purpose
Terrorist attacks on September 11, 2001, inflicted catastrophic
human casualties and property damage. These attacks highlighted the
terrorists' ability and desire to utilize multiple means in different
geographic areas to increase their opportunities to successfully carry
out their mission, thereby maximizing destruction using multiple
terrorist acts.
Since the September 11, 2001 terrorist attacks on the World Trade
Center in New York, the Pentagon in Arlington, Virginia and Flight 93,
the Federal Bureau of Investigation (FBI) has issued several warnings
concerning the potential for additional terrorist attacks within the
United States. The threat of maritime attacks is real as evidenced by
the October 2002 attack on a tank vessel off the coast of Yemen and the
prior attack on the USS COLE. These attacks manifest a continuing
threat to U.S. assets as described in the President's finding in
Executive Order 13273 of August 21, 2002 (67 FR 56215, September 3,
2002) that the security of the U.S. is endangered by the September, 11,
2001 attacks and that such disturbances continue to endanger the
international relations of the United States. See also Continuation of
the National Emergency with Respect to Certain Terrorist Attacks, (67
FR 58317, September 13, 2002); Continuation of the National Emergency
With Respect To Persons Who Commit, Threaten To Commit, Or Support
Terrorism, (67 FR 59447, September 20, 2002). The U.S. Maritime
Administration (MARAD) in Advisory 02-07 advised U.S. shipping
interests to maintain a heightened state of alert against possible
terrorist attacks. MARAD more recently issued Advisory 03-01 informing
operators of maritime interests of increased threat possibilities to
vessels and facilities and a higher risk of terrorist attack to the
transportation community in the United States. The ongoing hostilities
in Afghanistan and Iraq have made it prudent for U.S. ports and
waterways to be on a higher state of alert because the al Qaeda
organization and other similar organizations have declared an ongoing
intention to conduct armed attacks on U.S. interests worldwide.
Due to increased awareness that future terrorist attacks are
possible, the Coast Guard as lead federal agency for maritime homeland
security, has determined that the Captain of the Port must have the
means to be aware of, deter, detect, intercept, and respond to
asymmetric threats, acts of aggression, and attacks by terrorists on
the American homeland while still maintaining our freedoms and
sustaining the flow of commerce. A security zone is a tool available to
the Coast Guard that may be used to limit vessel traffic in a specific
area to help protect vessels from damage, injury, or terrorist attack.
The Captain of the Port of Philadelphia has determined that this
security zone is necessary to protect the public, ports, and waterways
of the United States from potential subversive acts.
Discussion of Comments
During the public comment period we received two letters. Both
letters expressed concern that the security zones would exclude
kayayers from access to paddle in specific areas on the Susquehanna
River. Each respondent also requested a public hearing to discuss the
proposed rule.
The Captain of the Port of Philadelphia has carefully weighed
security concerns versus public access concerns in the decision to
establish this security zone. The permanent zone will provide a clear
area in which to detect persons or vessels while providing for
traditional use outside of the security zone. This final rule remains
unchanged from the proposed rule. A public meeting was considered,
however given the number of requests and the need for increased
security around the nuclear facility, no public hearing was held.
Regulatory Evaluation
This rule is not a ``significant regulatory action'' under section
3(f) of Executive Order 12866, Regulatory Planning and Review, and does
not require an assessment of potential costs and benefits under section
6(a)(3) of that Order. The Office of Management and Budget has not
reviewed it under that Order. It is not significant under the
regulatory policies and procedures of the Department of Homeland
Security (DHS). No changes have been made to the rule.
We expect the economic impact of this rule to be so minimal that a
full Regulatory Evaluation under the regulatory policies and procedures
of DHS is unnecessary. There is ample room for vessels to navigate
around the security zone and the Captain of the Port may allow vessels
to enter the zone, on a case-by-case basis with the express permission
of the Captain of the Port of Philadelphia or their designated
representative.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we
considered whether this rule would have a significant economic impact
on a substantial number of small entities. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
The zone is limited in size and leaves ample room for vessels to
navigate around the zone. The zone will not significantly impact
commuter and passenger vessel traffic patterns; the vessels may be
allowed to enter the zone on a case-by-case basis, with the express
permission of the Captain of the Port of Philadelphia or their
designated representative.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will
not have a significant economic impact on a substantial number of small
entities, as none were identified that will be affected by the final
rule.
Vessel traffic counts indicate the waterway users will continue to
have the same access to the waterway as in the past, with the exception
of a remote small area surrounding the waterfront near the Salem and
Hope Generating Stations.
[[Page 5279]]
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding the rule so that they could better evaluate
its effects on them and participate in the rulemaking process. If the
rule will affect your small business, organization, or governmental
jurisdiction and you have questions concerning its provisions or
options for compliance, please contact the Coast Guard Marine Safety
Office Philadelphia in writing at the address under ADDRESSES.
Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247).
Collection of Information
This rule calls for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
Federalism
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them. We have analyzed this rule under
that Order and have determined that it does not have implications for
federalism.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 or more in any
one year. Though this rule will not result in such an expenditure, we
do discuss the effects of this rule elsewhere in this preamble.
Taking of Private Property
This rule will not affect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.
Civil Justice Reform
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Protection of Children
We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not create an
environmental risk to health or risk to safety that may
disproportionately affect children.
Indian Tribal Governments
This rule does not have tribal implications under Executive Order
13175, Consultation and Coordination with Indian Tribal Governments,
because it does not have a substantial direct effect on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes. We invite your
comments on how this rule might impact tribal governments, even if that
impact may not constitute a ``tribal implication'' under the order.
Energy Effects
We have analyzed this rule under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that Order because it is not a ``significant
regulatory action'' under Executive Order 12866 and is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. It has not been designated by the Administrator of the
Office of Information and Regulatory Affairs as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.
Environment
We have analyzed this rule under Commandant Instruction M16475.1D,
which guides the Coast Guard in complying with the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and
have concluded that there are no factors in this case that would limit
the use of a categorical exclusion under section 2.B.2 of the
Instruction. Therefore, this rule is categorically excluded, under
figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.lD,
from further environmental documentation.
We have considered waterside access constraints around the security
zone and have determined the public can safely transit the affected
waterways around the security zone, without significant impact on the
environment.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and record
keeping requirements, Security measures, Waterways.
0
For the reasons discussed in the preamble, the Coast Guard amends 33
CFR part 165 as follows:
PART 165-REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS
0
1. The authority citation for part 165 continues to read as follows:
Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50
U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub.
L. 107-295, 116 Stat. 2064; Department of Homeland Security
Delegation No. 0170.1
0
2. Add Sec. 165.553 to read as follows.
Sec. 165.553 Security Zone; Salem and Hope Creek Generation Stations,
Delaware River, Salem County, New Jersey.
(a) Location. The following area is a security zone: the waters of
the Delaware River in the vicinity of the Salem and Hope Creek
Generation Stations bounded by a line drawn from a point located at
3928'08.0'' N, 07532'31.7'' W to
3928'06.5'' N, 07532'47.4'' W, thence to
3927'28.4'' N, 07532'15.8'' W, thence to
3927'28.8'' N, 07531'56.6'' W, thence to
3927'39.9'' N, 07531'51.6'' W, thence
along the shoreline to the point of 3928'08.0'' N,
07532'31.7'' W. All coordinates reference Datum: NAD
1983.
(b) Regulations. (1) All persons are required to comply with the
general regulations governing security zones in Sec. 165.33 of this
part.
(2) No person or vessel may enter or navigate within this security
zone unless authorized to do so by the Coast Guard or designated
representative. Any person or vessel authorized to enter the security
zones must operate in strict conformance with any directions given by
the Coast Guard or designated representative and leave the security
zone immediately if the Coast Guard or designated representative so
orders.
(3) The Coast Guard or designated representative enforcing this
section can be contacted on VHF Marine Band Radio, channels 13 and 16.
The Captain of the Port can be contacted at (215) 271-4807.
[[Page 5280]]
(4) The Captain of the Port will notify the public of any changes
in the status of this security zone by Marine Safety Radio Broadcast on
VHF-FM marine band radio, channel 22 (157.1 MHZ).
(c) Definitions. For the purposes of this section, Captain of the
Port means the Commanding Officer of the Coast Guard Marine Safety
Office/Group Philadelphia, or any Coast Guard commissioned, warrant, or
petty officer who has been authorized by the Captain of the Port to act
as a designated representative on his behalf.
Dated: January 23, 2004.
Liam J. Slein,
Commander, U.S. Coast Guard, Acting Captain of the Port Philadelphia.
[FR Doc. 04-2306 Filed 2-3-04; 8:45 am]
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